| People v Perez |
| 2011 NY Slip Op 04829 [85 AD3d 1538] |
| June 10, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JamiePerez, Appellant. |
—[*1] Donald G. O'Geen, District Attorney, Warsaw (Marshall A. Kelly of counsel), forrespondent.
Appeal from a judgment of the Wyoming County Court (Mark H. Dadd, J.), rendered June 4,2009. The judgment convicted defendant, upon his plea of guilty, of promoting prisoncontraband in the first degree.
It is hereby ordered that the judgment so appealed from is affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofpromoting prison contraband in the first degree (Penal Law § 205.25 [2]), defendantcontends that he was denied due process based on the delay of 11½ months between thedate of the incident and the date of the indictment. Applying the factors set forth in People vTaranovich (37 NY2d 442, 445 [1975]), we reject that contention (see People vVernace, 96 NY2d 886, 887-888 [2001]). "There is no specific temporal period by which adelay may be evaluated or considered 'presumptively prejudicial' " (People v Romeo, 12 NY3d 51, 56[2009], cert denied 558 US —, 130 S Ct 63 [2009]), but a delay of 11½months alone is insufficient to require dismissal of the indictment (see People v Beyah,302 AD2d 981 [2003], lv denied 99 NY2d 626 [2003]; People v Irvis, 301 AD2d782, 784 [2003], lv denied 99 NY2d 655 [2003]). The People explained that the delaywas caused by staffing problems in the District Attorney's Office, and defendant does not contendthat the delay was caused by any bad faith on the part of the People (see Romeo, 12NY3d at 56-57). "The charge against defendant was serious, 'involv[ing] the safety and securityof a correctional facility' . . . Moreover, because defendant was already incarceratedon a prior felony conviction, 'the delay caused no further curtailment of his freedom'. . . Finally, we are unable to conclude on the record before us that the defense hasbeen impaired by reason of the delay" (People v Jenkins, 2 AD3d 1390, 1391 [2003]; see People vCoggins, 308 AD2d 635, 636 [2003]; People v Richardson, 298 AD2d 711, 712[2002]).
Defendant further contends that County Court erred in refusing to suppress the statement thathe made to the correction officer before that officer conducted a pat frisk. We reject thatcontention. At the Huntley hearing, the correction officer testified that, after a disturbancein the prison yard, he escorted defendant from the yard. Once inside the corridor of the prison,the correction officer asked defendant to face the wall "in the pat frisk position." Before friskingdefendant, the correction officer asked him "if he had anything on him." Defendant answeredaffirmatively, and it is that answer that defendant contends should have been suppressed.[*2]
The Court of Appeals has clearly stated that "[w]hen. . . the circumstances of the detention and interrogation of a prison inmate are nolonger analogous to those kinds of detentions found not custodial in nonprison settings[ ] butinstead entail added constraint that would lead a prison inmate reasonably to believe that therehas been a restriction on that person's freedom over and above that of ordinary confinement in acorrectional facility, Miranda warnings are necessary" (People v Alls, 83 NY2d94, 100 [1993], cert denied 511 US 1090 [1994]). Although the correction officeradmitted at the hearing that defendant was restrained to a greater degree than other inmates, thatstatement does not establish that defendant was restrained in a manner over and above that ofordinary confinement in a correctional facility.
Here, at the time defendant made his incriminating statement, the detention was theequivalent of a frisk for weapons. "There is a clear distinction between a stop and frisk inquiryand a forcible seizure [that] curtails a person's freedom of action to the degree associated with aformal arrest" (People v Morales, 65 NY2d 997, 998 [1985]). "When a seizure of aperson remains at the stop and frisk inquiry level and does not constitute a restraint on his or herfreedom of movement of the degree associated with a formal arrest, Miranda warningsneed not be given prior to questioning" (People v Bennett, 70 NY2d 891, 894 [1987];see Morales, 65 NY2d at 998). Although the Court of Appeals' decisions inBennett and Morales concern situations in nonprison settings, we conclude thatthe underlying premise is the same for prison settings. A stop and frisk would not constitutecustody pursuant to the Miranda rule in the nonprison setting, and we see no need toafford prison inmates any greater protection in a prison setting. Thus, "[t]he brief investigatorydetention of defendant did not 'entail added constraint that would lead a prison inmate reasonablyto believe that there has been a restriction on that person's freedom over and above that ofordinary confinement in a correctional facility' . . . , and the correction [officer's]single question to defendant did not constitute custodial interrogation" (People v Douglas, 12 AD3d 1174[2004], quoting Alls, 83 NY2d at 100).
In the cases relied upon by the dissent, the seizures of the defendants were commensuratewith a formal arrest, and the questioning went beyond routine questioning (see People v Gause, 50 AD3d1392, 1393-1394 [2008]; People vBrown, 49 AD3d 1345, 1346 [2008]; People v Hope, 284 AD2d 560, 561-562[2001]).
In any event, we further conclude that the court properly refused to suppress the statement inquestion based on the public safety exception to the Miranda rule (see generally NewYork v Quarles, 467 US 649, 655-657 [1984]). The correction officer testified at the hearingthat it was his practice to ask inmates whether they "had anything on" them before any pat friskso that he would not "get stuck or cut." Although the correction officer admitted that he asked thequestion in part to obtain information about a possible violation of inmate rules, the question was" 'reasonably prompted by a concern to secure the safety of the investigating officer[ ]. . . and was not solely motivated for the purpose of eliciting testimonialevidence' " (People v Taylor, 302 AD2d 868, 868-869 [2003], lv denied 99 NY2d658 [2003] [emphasis added]).
We reject defendant's contention that he was improperly sentenced as a second felonyoffender. Contrary to defendant's contention, the felony conviction for which he was incarceratedat the time of the incident at issue qualified as the requisite predicate felony conviction forsecond felony offender status (cf. People v Samms, 95 NY2d 52, 55 [2000]; see generally People v Ross, 7 NY3d905, 906 [2006]). Defendant was not denied effective assistance of counsel based on defensecounsel's failure to move to vacate the second felony offender adjudication on that ground(see People v Bell, 259 AD2d 429 [1999], lv denied 93 NY2d 922 [1999])."Defendant failed to preserve for our review his further contention concerning the failure tocomply with the procedural requirements of CPL 400.21 . . . [and, i]n any event,[he] waived strict compliance with [that statute] by admitting the prior felony conviction in opencourt" (People v Vega, 49 [*3]AD3d 1185, 1186 [2008],lv denied 10 NY3d 965 [2008]). The sentence is not unduly harsh or severe. We havereviewed defendant's remaining contention and conclude that it lacks merit.
All concur except Carni, J., who dissents and votes to reverse in accordance with thefollowing memorandum.
Carni, J. (dissenting). I respectfully dissent inasmuch as I disagree with the conclusion of mycolleagues that defendant was not subject to custodial interrogation when he was questioned by acorrection officer just prior to the discovery of a weapon in the waistband of defendant's pants.
I agree with defendant that reversal is required based on County Court's refusal to suppressthe statement allegedly made by defendant to that correction officer. At the Huntleyhearing, the correction officer testified that there was a disturbance in the prison yard and that hewas instructed to escort defendant out of the yard and into a corridor because another officer hadwitnessed defendant place something in his pants. In the corridor, with several other correctionofficers present, the officer who had escorted defendant out of the yard instructed him to face thewall and asked defendant "if he had anything on him." Defendant responded that he had aweapon, and a pat frisk revealed "a pick[-]type weapon" in defendant's waistband. The correctionofficer further testified that defendant was not free to leave once he was escorted out of the yardand that he was subjected to greater restraint than that to which other inmates were subjected. Iconclude that, "under those circumstances, 'defendant could have reasonably believed that hisfreedom was restricted over and above that of ordinary confinement' " (People v Brown, 49 AD3d 1345,1346 [2008]; see People v Alls, 83 NY2d 94, 100 [1993], cert denied 511 US1090 [1994]; People v Hope, 284 AD2d 560, 562 [2001]), and thus the correction officershould have administered Miranda warnings (see Alls, 83 NY2d at 100).
I also respectfully disagree with the majority's determination to extend the public safetyexception to the prison context under the facts presented here (see People v Gause, 50 AD3d1392, 1394 [2008]). The altercation that gave rise to the isolated custodial detention ofdefendant had fully dissipated when multiple correction officers surrounded defendant and hewas escorted by a correction officer into a corridor in order to be pat frisked. The correctionofficer admitted that his question to defendant included an attempt to obtain information about apossible violation of inmate rules. "[I]t was likely that the inquiry would elicit evidence of acrime and, indeed, it did elicit an incriminating response" (Brown, 49 AD3d at 1346).Thus, I conclude that the public safety exception is inapplicable here (see Gause, 50AD3d at 1394).
Inasmuch as I "cannot say with certainty that the erroneous suppression ruling played no partin defendant's decision to plead guilty," I conclude that the plea must be vacated (People vSelf, 213 AD2d 998, 998 [1995]; see People v Coles, 62 NY2d 908, 909-910[1984]). I would therefore vacate the plea, grant that part of the omnibus motion seeking tosuppress defendant's statement to the correction officer and remit the matter to County Court forfurther proceedings on the indictment. Present—Scudder, P.J., Fahey, Carni, Sconiers andMartoche, JJ.